FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee, No. 07-50478
v. D.C. No.
CR-02-00938-
HENRY MICHAEL HOUSTON, DOC-031
Defendant-Appellant.
UNITED STATES OF AMERICA, No. 08-50165
Plaintiff-Appellee,
D.C. No.
v.
2:02-cr-00938-
WAYNE BRIDGEWATER, also known DOC-13
as Seal M (13),
OPINION
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
David O. Carter, District Judge, Presiding
Argued and Submitted
March 8, 2011—Pasadena, California
Filed August 3, 2011
Before: Pamela Ann Rymer, Consuelo M. Callahan, and
Sandra S. Ikuta, Circuit Judges.
Opinion by Judge Rymer
10055
UNITED STATES v. HOUSTON 10059
COUNSEL
John C. Lemon, San Diego, California, for defendant-
appellant Henry Michael Houston.
William S. Harris, Law Offices of Wm. S. Harris, South Pasa-
dena, California, for defendant-appellant Wayne Bridgewater.
Stephen G. Wolfe, Assistant United States Attorney, Santa
Ana, California (argued); Terri K. Flynn, Assistant United
States Attorney, Santa Ana, California, for the plaintiff-
appellee.
OPINION
RYMER, Circuit Judge:
Henry Michael Houston and Wayne Bridgewater were
jointly tried and convicted of a substantive Racketeer Influ-
enced and Corrupt Organizations Act (RICO) violation, 18
U.S.C. § 1962(c); RICO conspiracy, 18 U.S.C. § 1962(d); and
two counts of violent crimes in aid of racketeering activity
(VICAR), 18 U.S.C. § 1959, arising out of their membership
in the Aryan Brotherhood (AB). Each was sentenced to life in
10060 UNITED STATES v. HOUSTON
prison without possibility of parole. They appeal, raising Brady1
and Napue2 issues, and claiming instructional error. We have
jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
I
A
For some time prior to August 28, 1997, racial tension
between the Aryan Brotherhood3 and DC Blacks4 prison
gangs had been growing at the United States Prison at Lewis-
burg. On the morning of August 28, Bridgewater, an AB
member, and Al Benton, a member of the AB’s three-person
governing Commission for federal prisons, opened a letter
from Tyler Bingham, another AB federal commissioner. The
letter contained invisible ink that, when heated, revealed the
phrase “War with DC Blacks.” At 10:53 A.M., Benton called
Ronnie Slocum, who had forwarded the letter, to find out why
the AB was now at war with the DC Blacks. Afterwards, Ben-
ton started to plan an assault on the DC Blacks.
Benton testified that around noon, he mentioned the war to
Houston, an AB recruit. Houston told Benton, “I’m with
you.” Houston never expressed any hesitation about killing
DC Blacks members. Benton testified that if Houston had
attempted to withdraw from the plan, he would have killed
him for disobedience. Meanwhile, Bridgewater, on his own
initiative, recruited two more inmates, John Campbell and
Jason Schwyhart, for the assault.
1
Brady v. Maryland, 373 U.S. 83 (1963).
2
Napue v. Illinois, 360 U.S. 264, 269 (1959).
3
For a description of the Aryan Brotherhood prison gang, see United
States v. Bingham, ___ F.3d ___ (9th Cir. 2011).
4
The DC Blacks was a group of predominately black inmates from the
Washington, D.C. area.
UNITED STATES v. HOUSTON 10061
After lunch, Benton, Houston, Bridgewater, Campbell, and
Schwyhart met to discuss the killings. They noticed a small
hitch — that Benton, Bridgewater, Campbell, and Schwyhart
were housed in A Unit and Houston in B Unit. Inmates could
not freely travel between the units. As a solution, Houston
offered to kill DC Blacks members in B Unit by himself. Ben-
ton rejected this as too dangerous because Houston would be
outnumbered. Instead, Benton planned to sneak Houston into
A Unit. Benton testified that he succeeded in getting Houston
into A unit around 4:30 to 5:00 P.M. A prison guard con-
firmed that Houston was in A Unit (including in Benton’s
cell) after the murders. Also, a security camera recorded
Houston moving from B Unit to A Unit around 6:24 P.M.
At night, Benton, Bridgewater, Houston, Campbell, and
Schwyhart met in Benton’s room. Each armed himself with a
knife-like weapon. Then they split into two groups, one com-
posed of Houston and Benton, and the other of Bridgewater,
Campbell, and Schwyhart. Benton ordered Bridgewater to kill
a specific DC Black member, which Bridgewater refused to
do because he knew the man too well. Benton then ordered
him to kill a man named “Red.” Bridgewater again did not go
through with the murder because Red was in the shower. At
this point, Benton became upset at Bridgewater’s reluctance
to kill.
Not wanting to deal with Bridgewater any longer, Benton
went off with Houston to kill Abdul Salaam. Benton initially
stabbed Salaam through the throat. Houston then joined in the
stabbing and in the process accidentally struck Benton.
Salaam suffered thirty-four stab wounds, sixteen of which
were fatal. After the killing, Houston threw both his and Ben-
ton’s knives out the window, an act which Benton testified
prevented him from killing more DC Blacks members. A
DNA report found that Salaam’s blood was on Benton’s
clothes and knife, but did not specify whether Salaam’s blood
was on Houston’s clothes and knife.
10062 UNITED STATES v. HOUSTON
Meanwhile Bridgewater, Campbell, and Schwyhart
attacked Frank Joyner. Ball, another inmate, saw Bridgewater
stab Joyner, who suffered thirty-five stab wounds, six of
which were fatal. Shortly afterwards, Schwyhart stabbed Ball.
B
The jury convicted Houston of a substantive RICO viola-
tion and RICO conspiracy, 18 U.S.C. §§ 1962(c), (d), based
on the predicate acts of a conspiracy to murder black inmates
in violation of Cal. Penal Code §§ 182, 187, and the murder
of Abdul Salaam in violation of 18 Pa. Cons. Stat. §§ 306,
2502. He was also convicted as a co-conspirator on two
counts of VICAR murder, 18 U.S.C. § 1959, for the murders
of Frank Joyner and Abdul Salaam.
Bridgewater was found guilty of a substantive RICO viola-
tion and a RICO conspiracy based on the predicate acts of a
conspiracy to murder black inmates in violation of Cal. Penal
Code §§ 182, 187; and the murders of Frank Joyner and
Abdul Salaam, and the attempted murder of Titus Webster, all
in violation of 18 Pa. Cons. Stat. §§ 306, 901, 2502. Bridge-
water was also convicted as a direct participant and co-
conspirator in the VICAR murder of Joyner and as a co-
conspirator in the VICAR murder of Salaam.
Each received a sentence of life in prison without parole.
Both timely appeal their convictions.
II
On the last day of its case, the government called Irvin
McConaghy, a jailhouse informant. Before trial, the govern-
ment had disclosed a report of three interviews of
McConaghy by Special Agent Michael Halualani on April 13,
2005, January 29, 2006, and January 16, 2007. During these
interviews, McConaghy stated that Houston had told him “if
the BOP lets [me] out of the Control Unit [I am] going to con-
UNITED STATES v. HOUSTON 10063
tinue killing DC Blacks ‘until they kill [me].’ ” On April 13,
2007, several days before McConaghy took the stand, the
prosecution emailed the defense that McConaghy was now
expected to testify that Houston “actually stated he is going
to continue killing ‘niggers’ referring to the DC Blacks.” At
trial, McConaghy gave testimony along these lines: “[Hous-
ton] said if the government doesn’t give him the death penalty
for what they did to those niggers in Lewisburg, then as soon
as he gets out of the control unit, he will kill more niggers,
and he’s going to continue to kill until someone kills him.”
On cross-examination, the defense questioned McConaghy
about his appearance in other proceedings in which he did not
mention Houston. McConaghy testified in a different trial in
2004 that he had information about Campbell, but said noth-
ing about Houston. He also testified before the grand jury in
this case on April 13, 2005, but talked only about Campbell.
This line of inquiry implied that McConaghy had made up
Houston’s statement after his deal to testify against Campbell
fell through because of Campbell’s death. McConaghy
acknowledged that he “probably” found out Campbell died
after his testimony in 2004 and 2005, but testified that he had
told Pennsylvania-based Assistant United States Attorney
(AUSA) Fred Martin about Houston’s statement during an
interview in 2003. This testimony surprised the prosecuting
AUSA, who called Martin for his interview notes during the
first break and turned them over to the defense while
McConaghy was still on the stand. Martin’s notes reflect
nothing about Houston. The defense then cross-examined
McConaghy based on the notes, suggesting that he was lying
when he said that he had told AUSA Martin about Houston
because the interview notes didn’t say so. Houston’s counsel
made these same points during closing.
After a failed effort to arrive at a stipulation as to what
Martin’s testimony would be, the defense subpoenaed him to
testify but did not call him as a witness until the penalty
phase. Martin testified at that point that he did not recall
10064 UNITED STATES v. HOUSTON
whether McConaghy told him anything about Houston. Mar-
tin testified it was possible, but “fairly unlikely,” that he
would have failed to record McConaghy’s statement about
Houston, if McConaghy had made it. He also indicated that
in 2003 he had told an AUSA in the United States Attorney’s
Office for the Central District of California that McConaghy
could be a useful witness, primarily against Campbell.
Finally, Martin testified that, once the issue surfaced at trial,
he told the prosecuting AUSA that he didn’t recall
McConaghy saying anything about Houston. He denied tell-
ing her that McConaghy did not say any such thing.
Houston and Bridgewater argue that the government vio-
lated Brady v. Maryland, 373 U.S. 83 (1963), by failing to
disclose McConaghy’s anticipated testimony, Martin’s 2003
interview notes, and Martin’s recollection of the interview.5
They also contend that the government knowingly presented
perjured testimony by McConaghy in violation of Mooney v.
Holohan, 294 U.S. 103, 112 (1935), and Napue, 360 U.S. at
269. At the very least, they submit, the government failed to
fulfill its duty to investigate the truthfulness of McConaghy’s
testimony.
We review for plain error whether the government failed to
disclose exculpatory evidence and knowingly presented per-
jured testimony because these claims were not presented to
the district court. See United States v. Guzman-Padilla, 573
F.3d 865, 890 (9th Cir. 2009); United States v. Zuno-Arce
(Zuno-Arce I), 44 F.3d 1420, 1422 (9th Cir. 1995). “Plain
error requires an (1) error, (2) that is plain, and (3) that affects
substantial rights.” United States v. Delgado, 357 F.3d 1061,
1065 (9th Cir. 2004) (internal quotations omitted). Even
assuming these conditions are met, we only exercise our dis-
cretion to fix the error if it “seriously affects the fairness,
5
The argument is primarily Houston’s, but Bridgewater joins on the
premise that his conviction was tainted by admission of the false testi-
mony. We do not need to decide this given our disposition.
UNITED STATES v. HOUSTON 10065
integrity, or public reputation of judicial proceedings.” Id.
(internal quotations omitted).
A
[1] The government has a duty under Brady to disclose
exculpatory and impeaching evidence. To receive a new trial
because of a Brady violation, a defendant must show: “(1) the
evidence was exculpatory or impeaching; (2) it should have
been, but was not produced; and (3) the suppressed evidence
was material to his guilt or punishment. Evidence is material
under Brady only if there is a reasonable probability that the
result of the proceeding would have been different had it been
disclosed to the defense.” United States v. Antonakeas, 255
F.3d 714, 725 (9th Cir. 2001) (internal citations and quota-
tions omitted). However, there is no Brady violation so long
as the exculpatory or impeaching evidence is disclosed at a
time when it still has value. See United States v. Vgeri, 51
F.3d 876, 880 (9th Cir. 1995) (impeaching evidence disclosed
during trial was still valuable because the defense could use
it on cross-examination); United States v. Gordon, 844 F.2d
1397, 1403 (9th Cir. 1988) (impeaching evidence disclosed
after a witness had finished testifying did not constitute a
Brady violation because the court had offered to recall the
witness for further cross-examination in light of the new
impeaching evidence).
[2] Here, the government disclosed McConaghy as a wit-
ness and his expected testimony well in advance of the trial.
The government also turned over AUSA Martin’s notes from
his interview with McConaghy during trial but while cross-
examination was on-going. At this point, the notes still had
evidentiary value to the defense because they could be used
— and were used — during cross examination. See Vgeri, 51
F.3d at 880. Failing to disclose Martin’s recollection of the
interview (i.e., no memory of McConaghy mentioning Hous-
ton’s statement) was not material because it was substantially
similar to the more powerful evidence that the defense had
10066 UNITED STATES v. HOUSTON
and had already used — Martin’s notes recorded nothing
about a Houston confession. See Lopez v. Ryan, 630 F.3d
1198, 1210 (9th Cir. 2011). In these circumstances, we see no
plain Brady error.
B
[3] A conviction obtained using knowingly perjured testi-
mony violates due process, even if the witness’s perjured tes-
timony goes only to his credibility as a witness and not to the
defendant’s guilt. Mooney, 294 U.S. at 112; Napue, 360 U.S.
at 269. The government’s failure to correct testimony that it
later learns is perjured is also a Mooney-Napue violation.
Hayes v. Brown, 399 F.3d 972, 978 (9th Cir. 2005) (en banc).
To prevail on a Mooney-Napue claim, the defendant must
show that “(1) the testimony . . . was actually false, (2) the
prosecution knew or should have known that the testimony
was actually false, and (3) that the false testimony was materi-
al.” United States v. Zuno-Arce (Zuno-Arce II), 339 F.3d 886,
889 (9th Cir. 2003). “In assessing materiality under Napue,
we determine whether there is any reasonable likelihood that
the false testimony could have affected the judgment of the
jury; if so, then the conviction must be set aside. Under this
materiality standard, the question is not whether the defendant
would more likely than not have received a different verdict
with the evidence, but whether in its absence he received a
fair trial, understood as a trial resulting in a verdict worthy of
confidence.” Hayes, 399 F.3d at 984 (internal quotations and
citations omitted). However, “if it is established that the gov-
ernment knowingly permitted the introduction of false testi-
mony reversal is virtually automatic.” Id. at 978 (internal
quotations omitted).
[4] Houston and Bridgewater maintain that McConaghy
committed perjury by falsely testifying that Houston had con-
fided in him, and that he had told AUSA Martin of Houston’s
statement. They have, however, failed to show that
UNITED STATES v. HOUSTON 10067
McConaghy’s testimony was “actually false” or that the gov-
ernment knowingly presented false testimony.
As to the “confiding” statement, Houston and Bridgewater
at most point to evidence creating an inference of falsity:
McConaghy may only have implicated Houston after Camp-
bell’s death, which gave him an incentive to lie; McConaghy
failed to mention Houston’s statement during previous testi-
mony; and McConaghy may not have relayed Houston’s
statement in the only interview that took place before Camp-
bell died. The earlier omissions were, in effect, prior inconsis-
tent statements in that McConaghy had (implicitly)
represented that he had no information on Houston whereas
at trial, McConaghy testified that Houston had confided in
him. These inconsistencies were fully explored and argued to
the jury. Beyond this, no record was developed about the gov-
ernment’s use of perjured testimony. This leaves no basis
upon which to conclude that the “confiding” statement was
perjured testimony knowingly used.
[5] With respect to McConaghy’s interview with Martin,
AUSA Martin testified during the penalty phase that it was
possible but “fairly unlikely” that McConaghy had told him
about Houston’s statement, because if McConaghy had told
him, he would have recorded it in his notes. Martin’s testi-
mony certainly rasies a question about McConaghy’s credibil-
ity, but it does not establish that McConaghy lied, or that the
government knowingly presented false testimony. Regardless,
there is not a “reasonable likelihood” that McConaghy’s state-
ment “affected the judgment of the jury.” Hayes, 399 F.3d at
984. Defense counsel effectively attacked McConaghy’s cred-
ibility. They argued that Martin’s notes showed McConaghy
had never mentioned Houston’s statement to Martin, and that
McConaghy may have fabricated Houston’s statement after
Campbell’s death. Additionally, there was overwhelming evi-
dence that Houston and Bridgewater participated in the
Lewisburg murders: their leader, Al Benton, testified against
them; an eyewitness saw Bridgewater repeatedly stab an
10068 UNITED STATES v. HOUSTON
inmate; and prison guards found both of them covered in
blood after the murders. Consequently, our confidence in the
verdict is not undermined.
Finally, no reason appears for a new trial on the asserted
ground that the government failed to investigate whether
McConaghy lied. Houston and Bridgewater identify nothing
else the government could have done. It provided the Halua-
lani interview report; turned over AUSA Martin’s notes; and
made Martin available to testify, once McConaghy’s inter-
view with him came to the fore. This differs from prior cases
where a new trial was ordered due to the government’s failure
to investigate, because in those cases, the government failed
to investigate obvious leads. See, e.g., N. Mariana Islands v.
Bowie, 243 F.3d 1109, 1117-19 (9th Cir. 2001) (government
prosecutors did not investigate a letter which suggested a con-
spiracy by multiple perpetrators to commit perjury and blame
a single person); United States v. Bernal-Obeso, 989 F.2d
331, 332-33, 335-36 (9th Cir. 1993) (without further investi-
gation, it was unclear whether an informant lied to the gov-
ernment about his criminal record or whether it was a
miscommunication); see also Morris v. Ylst, 447 F.3d 735,
743-46 (9th Cir. 2006) (the government failed to investigate
notes which indicated a witness had lied, but the error was not
prejudicial).
III
Bridgewater and Houston requested instructions on duress,
which the district court rejected because they were unsup-
ported by the evidence. See United States v. Slocum, 486 F.
Supp. 2d 1104, 1115-19 (C.D. Cal. 2007). For the predicate
acts controlled by Pennsylvania law, the district court held
that Bridgewater and Houston recklessly placed themselves in
Benton’s presence on the night of the murders. Both had
opportunities throughout the day to escape by sequestering
themselves in their cells or going to the guards for help. As
such, neither was eligible for a duress instruction under Penn-
UNITED STATES v. HOUSTON 10069
sylvania law. Id. at 1115-16; see also 18 Pa. Cons. Stat.
§ 309(b). Regarding the VICAR murder charges controlled by
federal law, the district court assumed, without deciding, that
duress was available as a defense but held that Bridgewater
and Houston had failed to make a prima facie case for the
applicability of a duress defense because any threat from Ben-
ton was not imminent and both had a reasonable opportunity
to escape. Id. at 1118-19.
Houston and Bridgewater submit that the district court
should have given their proposed duress instructions for the
predicate acts of murder in violation of Pennsylvania law, for
the predicate act of conspiracy to commit murder in violation
of California law, and for the VICAR murder and RICO con-
spiracy charges. In support, they point to evidence that Ben-
ton would have killed them if they refused to participate.
[6] We review for abuse of discretion the district court’s
denial of a requested jury instruction as unsupported by the
evidence. United States v. Daane, 475 F.3d 1114, 1119 (9th
Cir. 2007). For the substantive RICO charge, state law gov-
erns the substantive defenses to the predicate racketeering
acts. See United States v. Muskovsky, 863 F.2d 1319, 1330-31
(7th Cir. 1988); see also United States v. Bertman, 686 F.2d
772, 774 (9th Cir. 1982) (state substantive defenses incorpo-
rated into federal Travel Act). That is, California law governs
the availability of a duress defense for the predicate racketeer-
ing act of conspiracy to commit murder in violation of Cal.
Penal Code §§ 182, 187, and Pennsylvania law governs the
availability of the defense for the predicate racketeering act of
murder and attempted murder in violation of 18 Pa. Cons.
Stat. §§ 306, 901, 2502. Federal law governs the availability
of the defense for the RICO conspiracy and VICAR murder
charges.
“[A] defendant is entitled to an instruction as to any recog-
nized defense for which there exists evidence sufficient for a
reasonable jury to find in his favor.” Mathews v. United
10070 UNITED STATES v. HOUSTON
States, 485 U.S. 58, 63 (1988). “The legal standard is gener-
ous: a defendant is entitled to an instruction concerning his
theory of the case if the theory is legally sound and evidence
in the case makes it applicable, even if the evidence is weak,
insufficient, inconsistent, or of doubtful credibility. A defen-
dant needs to show only that there is evidence upon which the
jury could rationally sustain the defense.” United States v.
Kayser, 488 F.3d 1070, 1076 (9th Cir. 2007) (internal citation
and quotations omitted).
[7] Assuming (without deciding) a duress defense is avail-
able, the district court did not abuse its discretion in refusing
to give a duress instruction under California, Pennsylvania, or
federal law because the evidence did not support such an instruc-
tion.6 To receive a duress instruction under federal law, the
defendants must present a prima facie case on three elements:
“(1) an immediate threat of death or serious bodily injury, (2)
a well-grounded fear that the threat will be carried out, and (3)
lack of a reasonable opportunity to escape the threatened
harm.” United States v. Vasquez-Landaver, 527 F.3d 798, 802
(9th Cir. 2008) (internal quotations omitted). Houston and
Bridgewater failed to make such a showing on the immediacy
and lack-of-escape prongs.
[8] “The element of immediacy requires some evidence
that [death or serious bodily injury] was present, immediate
6
We do not need to decide whether duress is ever available as a defense
to conspiracy to commit murder under California or federal law because
we conclude that the district court did not abuse its discretion in finding
that a duress instruction was, in any event, unsupported by the evidence.
See Dixon v. United States, 548 U.S. 1, 6-7 & n.4 (2006) (duress may
negate the mens rea for certain crimes); United States v. LaFleur, 971 F.2d
200, 204-06 (9th Cir. 1991) (duress is not a defense to federal first degree
murder); People v. Vieira, 106 P.3d 990, 1005-06 (Cal. 2005) (duress is
not a defense to murder or attempted murder under California law, but
noting that California has yet to decide whether duress is a defense to con-
spiracy to commit murder). Duress is a defense to first degree murder
under Pennsylvania law, however. See Commonwealth v. Markman, 916
A.2d 586, 606 (Pa. 2007).
UNITED STATES v. HOUSTON 10071
or impending.” United States v. Atencio, 586 F.2d 744, 746
(9th Cir. 1978) (per curiam). Houston and Bridgewater rely
on Benton’s testimony that he would have killed them if they
hadn’t participated in the murders, but this was at most a
threat of future harm. In fact, when Bridgewater twice refused
to kill as ordered, Benton did not attempt to punish Bridgewa-
ter immediately; he only became angry and ordered him to
kill a different inmate. Threats of non-imminent, future harm
do not support a duress instruction. See United States v.
Becerra, 992 F.2d 960, 964 (9th Cir. 1993); United States v.
Shapiro, 669 F.2d 593, 596-97 & n.3 (9th Cir. 1982); Atencio,
586 F.2d at 747.
Bridgewater and Houston also failed to avail themselves of
alternatives to committing a crime, such as escape or contact-
ing the authorities. See United States v. Karr, 742 F.2d 493,
497 (9th Cir. 1984); Atencio, 586 F.2d at 747. They could
have sought protective custody, or a transfer, or taken refuge
in their own cell, but did not. See United States v. Wood, 566
F.2d 1108, 1109 (9th Cir. 1977) (per curiam). Houston and
Bridgewater were separated from Benton throughout the day
but instead of taking any of these precautions, Bridgewater
chose to recruit Campbell and Schwyhart for the murders, and
Houston, when alone in B Unit, chose to sneak back into A
Unit so he could participate in the murders.
[9] California law mirrors federal law in that a defendant
must show an immediate danger and a lack of opportunity to
escape in order for the jury to be instructed on a duress
defense. See People v. Vieira, 106 P.3d 990, 1006 (Cal. 2005)
(“The common characteristic of all the decisions upholding a
duress defense lies in the immediacy and imminency of the
threatened action: each represents the situation of a present
and active aggressor threatening immediate danger; none
depict a phantasmagoria of future harm.” (internal quotations
and alteration marks omitted)); In re Arnoff, 586 P.2d 960,
964 (Cal. 1978) (rejecting a duress defense where there was
“no persuasive evidence [the defendant] made serious effort
10072 UNITED STATES v. HOUSTON
to terminate his association with [the source of duress] or to
bring his situation to the attention of any authority”); People
v. Petznick, 7 Cal. Rptr. 3d 726, 736 (Cal. Ct. App. 2003).
Thus, Houston and Bridgewater were not entitled to a duress
instruction under California law for the same reasons they
were not entitled to one under federal law: the threat was not
immediate, and both had opportunities to escape.
Pennsylvania law is somewhat different. A defendant is
entitled to a duress defense where he commits a crime “be-
cause he was coerced to do so by the use of, or a threat to use,
unlawful force against his person or the person of another,
which a person of reasonable firmness in his situation would
have been unable to resist.” 18 Pa. Cons. Stat. § 309(a). “[T]o
establish the duress defense under Section 309, unlike under
the common law rule, the force or threatened force does not
need to be of present and impending death or serious bodily
injury. Instead, the relevant inquiry under Section 309 is
whether the force or threatened force was a type of unlawful
force that a person of reasonable firmness in the defendant’s
situation would have been unable to resist.” Commonwealth
v. DeMarco, 809 A.2d 256, 262 (Pa. 2002) (internal quota-
tions and alteration marks omitted) (emphasis removed).
There is, however, an exception to § 309(a). “The defense . . .
is unavailable if the actor recklessly placed himself in a situa-
tion in which it was probable that he would be subjected to
duress.” 18 Pa. Cons. Stat. § 309(b).
Pennsylvania courts recognize that the § 309(b) exception
to the duress defense applies as a matter of law when a defen-
dant “entirely remove[s] himself from the alleged coercer’s
influence . . . and then [ ] voluntarily return[s] to a location
where he [knows] that a violent crime” will take place. Com-
monwealth v. Markman, 916 A.2d 586, 609 (Pa. 2007); see
also Commonwealth v. Pelzer, 612 A.2d 407, 413-14 (Pa.
1992) (plurality) (duress defense unavailable to a defendant
who repeatedly failed to avail himself of opportunities to
withdraw from a kidnapping conspiracy).
UNITED STATES v. HOUSTON 10073
[10] We believe that a Pennsylvania court would hold that
§ 309(b) excludes a duress defense as a matter of law in this
case. Both Bridgewater and Houston “entirely removed”
themselves from Benton — Bridgewater recruited inmates for
the conspiracy and Houston went to his cell in B Unit. At that
time, both knew Benton was planning to murder DC Blacks.
Notwithstanding this, both “voluntarily returned to a location
where [they] knew that a violent crime was in progress.” See
Markman, 916 A.2d at 609.
IV
Houston and Bridgewater argue that the VICAR murder
instructions erroneously omitted the requirement that the mur-
der be “for the purpose of gaining entrance to or maintaining
or increasing position” in the AB, see 18 U.S.C. § 1959(a),
and failed to identify the predicate conspiracy for co-
conspirator liability. We review the VICAR murder instruc-
tions for plain error because neither objected to them.
“In reviewing jury instructions, the relevant inquiry is
whether the instructions as a whole are misleading or inade-
quate to guide the jury’s deliberation.” United States v.
Garcia-Rivera, 353 F.3d 788, 792 (9th Cir. 2003) (internal
quotations omitted). “The trial court has substantial latitude so
long as its instructions fairly and adequately cover the issues
presented.” United States v. Hicks, 217 F.3d 1038, 1045 (9th
Cir. 2000) (internal quotations omitted). “A single instruction
to a jury may not be judged in artificial isolation, but must be
viewed in the context of the overall charge.” United States v.
Frega, 179 F.3d 793, 806 n.16 (9th Cir. 1999).
[11] Paragraph 8 of Instruction No. 34 told the jury that an
element of VICAR murder was acting for the purpose of posi-
tion in the AB. It instructed that to convict, the jury must find
that the government has established beyond a reasonable
doubt:
10074 UNITED STATES v. HOUSTON
5. Someone committed the first degree murder(s) of
[Frank Joyner, for Count 6; or Abdul Salaam for
Count Seven].
7. Defendant(s)
A. Aided and abetted the first degree mur-
ders . . . , or
B. Have co-conspirator liability for the first
degree murders . . . , or
C. Both (A) and (B) above.
8. Defendant(s) did so for the purpose of gaining
entrance to, increasing, or maintaining his position in
the enterprise.
Instruction No. 36 further directed that the jury could convict
the defendants of VICAR murder on a Pinkerton theory. Pin-
kerton v. United States, 328 U.S. 640 (1946). Under Pinker-
ton, Houston and Bridgewater could be criminally liable as a
co-conspirator if “(1) the [VICAR murder] was committed in
furtherance of the conspiracy; (2) the [VICAR murder] fell
within the scope of the unlawful project; and (3) the [VICAR
murder] could reasonably have been foreseen as a necessary
or natural consequence of the unlawful agreement.” See
United States v. Chong, 419 F.3d 1076, 1081 (9th Cir. 2005)
(internal quotations omitted).
[12] The district court properly instructed the jury on each
of the three elements of Pinkerton liability. The defendants
have provided no support for their argument that the instruc-
tions must specify the predicate conspiracy, and we see no
plain error in failing to do so. Nor was giving a Pinkerton
instruction for VICAR murder plainly erroneous. The First
Circuit approved a Pinkerton instruction in similar circum-
stances in United States v. Tse, 135 F.3d 200 (1st Cir. 1998).
UNITED STATES v. HOUSTON 10075
There, the defendant also argued that a Pinkerton instruction
was improper for VICAR murder because it would leave out
the mens rea element that the defendant act “for the purpose
of gaining entrance to or maintaining or increasing position in
an enterprise.” 18 U.S.C. § 1959(a); Tse, 135 F.3d at 206. The
court rejected this argument because it “ignores the precept on
which Pinkerton liability is based, that the necessary ‘criminal
intent to do the act is established by the formation of the con-
spiracy.’ ” Id. at 206-07 (quoting Pinkerton, 328 U.S. at
647)). The court further noted that the jury was required to
find that the defendant possessed the requisite intent — acting
for the purpose of maintaining position — when he entered
into the conspiracy. Therefore, “all foreseeable crimes com-
mitted by the conspiracy [could] be attributed to that intent.”
Id. at 207. We agree.
[13] As in Tse, the jury here was required to find that
Houston and Bridgewater had the requisite intent of gaining,
maintaining, or increasing position in the AB. Houston and
Bridgewater suggest that Instruction No. 36 confused the
issue by stating that “it is not necessary that the defendant
personally act for the purpose of gaining entrance to, main-
taining or increasing his position in the enterprise.” However,
this simply means that Bridgewater and Houston need not
themselves have participated in the actual Joyner and Salaam
murders to maintain or increase their positions in the AB, but
as Instruction No. 34 makes clear, they were nevertheless
required to have that intent when they entered into the conspir-
acy.7 That is not plainly an improper basis for conviction of
VICAR murder under Pinkerton.
7
Even if the statement in Jury Instruction No. 36 that “it is not necessary
that the defendant personally act for the purpose of gaining entrance to,
maintaining or increasing his position in the enterprise, as it would be for
guilt based on aiding and abetting,” were interpreted as being inconsistent
with Instruction 34’s requirement that the defendant have acted for the
purpose of gaining entrance to, increasing, or maintaining his position in
the AB for purposes of VICAR liability, any instructional error would be
10076 UNITED STATES v. HOUSTON
V
Houston and Bridgewater requested an instruction allowing
the jury to find second degree murder as the predicate murder
offense in the VICAR murder charges. They posit that, had
the jury found second degree murder as the predicate offense,
it would have been forced to acquit because VICAR murder
cannot be predicated on second degree murder. The district
court rejected this request, holding that Bridgewater and
Houston would have been guilty of VICAR murder even if
the jury had found second degree murder as the predicate
offense instead of first degree murder. As such, the second
degree murder instruction would have been spurious. See Slo-
cum, 486 F. Supp. 2d at 1114-15 n.6.
[14] The instruction they sought is not a typical lesser-
included-offense instruction; rather, it is a lesser-included-
predicate-offense instruction. Every circuit to have enter-
tained this argument has rejected it. See United States v. Fow-
ler, 535 F.3d 408, 421 (6th Cir. 2008) (“[T]here is no such
thing as a lesser-included-predicate-act instruction.”); United
States v. Nguyen, 255 F.3d 1335, 1340 (11th Cir. 2001);
United States v. Forsythe, 594 F.2d 947, 952 (3d Cir. 1979).
We join them.
The Third Circuit’s opinion in Forsythe is particularly per-
suasive. There, the defendants argued that the district judge
should have instructed the jury that it could find state misde-
meanors as the RICO predicate racketeering acts, in addition
to the state felonies that were listed. Further, the defendants
argued that if the jury did find state misdemeanors as the
harmless in light of the overwhelming and uncontradicted evidence at trial
that Houston and Bridgewater conspired to commit VICAR murder for the
purpose of gaining entrance to, increasing, or maintaining their positions
in the AB, including Benton’s testimony that both men were willing and
eager participants in the attacks on DC Blacks. See United States v.
Anchrum, 590 F.3d 795, 801 (9th Cir. 2009).
UNITED STATES v. HOUSTON 10077
predicate offenses, it had to acquit because only state felonies
may be predicate racketeering acts. The Third Circuit rea-
soned that this argument was contrary to the purpose of the
lesser-included-offense doctrine, explaining: “The purpose of
an instruction on a lesser included offense is to give the
defendant the benefit, not of the possibility that the jury will
find him not guilty, but rather of the additional possibility that
it may find him guilty of an offense carrying a less severe sen-
tence.” Forsythe, 594 F.2d at 952; see also Beck v. Alabama,
447 U.S. 625, 633 (1980) (A lesser included offense instruc-
tion serves as a benefit “to the defendant because it affords
the jury a less drastic alternative than the choice between con-
viction of the offense charged and acquittal.”). For the same
reason, Houston and Bridgewater fail to convince us that sec-
ond degree murder should have been included as a possible
predicate offense for the VICAR murder charges, and if the
jury found second degree murder as the predicate offense,
they must be acquitted.
AFFIRMED.